Thaler seeks rehearing of CAFC decision on DABUS AI, lawyer urges SCOTUS to deny cert in Amgen, and FTC orders Amazon’s Jassy and Bezos to testify in first probe

Bite (noun): more meaty news to sink your teeth into.

Bark (noun): peripheral noise worth paying attention to. week in Other Barks & Bites: The Journalism Protection and Competition Act moves out of the Senate Judiciary Committee with a substantive improvement that secures Republican support; the U.S. Solicitor General files a case with the U.S. Supreme Court recommending denial of a writ petition certiorari in Amgen; Federal Trade Commission tells Amazon it has not shown that demands for testimony from CEO Andy Jassy and founder Jeff Bezos are unduly burdensome; Ford announces it has broken ground on its $5.6 billion BlueOval City campus outside Memphis; Court of Federal Claims Affirms Section 101 Invalidation of Audio Evolution Diagnostics’ Patent Claims; the Trademark Trial and Appeal Board finds no clear and convincing evidence of an earlier priority date in a “Happiest Hour” trademark cancellation case; and Stephen Thaler is filing a petition for rehearing at the U.S. Court of Appeals for the Federal Circuit in its ongoing efforts to have DABUS AI recognized as an inventor under U.S. law.


JCPA moves out of Senate Judiciary Committee with content moderation – On Thursday, September 22, the US Senate Judiciary Committee voted to move S. 673, the Journalism Competition and Preservation Act (JCPA), out of committee for a full Senate vote. The bill, which would create a safe harbor from US antitrust laws for digital journalism providers that form joint entities to negotiate licenses for online news republishing with covered platforms, moved forward with Republican support thanks to the inclusion of an amendment that was first proposed by Senator Ted Cruz (R-TX), which seeks to prohibit parties from being able to negotiate content moderation into their agreements.

US Attorney General Asks SCOTUS to Deny Cert on Activation Issues in Amgen – On Wednesday, September 21, the Office of the United States Solicitor General filed a brief representing the views of the United States federal government on the issues raised in the subpoena petition of certiorari in Amgen v. Sanofithat urges the nation’s highest court to decline to grant the petition for writ of certiorari on Amgen’s appeal of the Federal Circuit’s decision affirming the invalidity of Amgen’s patent claims covering cholesterol treatments due to lack of activation.

Sixth Circuit says JHP has right to sue for copyright of Mayweather-McGregor fight – On Wednesday, September 21, the US Court of Appeals for the Sixth Circuit issued a ruling in Joe Hand Productions, Inc. against Griffith in which the appeals court overturned the Eastern District of Tennessee’s grant of summary judgment to the owners of a bar that showed the August 2017 pay-per-view fight between Floyd Mayweather and Conor McGregor without paying Showtime for a commercial license. The Sixth Circuit ruled that a November 2017 copyright agreement between Showtime and Joe Hand Productions gave Joe Hand the right to sue for infringements that occurred before the agreement between those parties.

Novartis appeals June CAFC decision invalidating MS treatment claims – On Wednesday, September 21, the pharmaceutical company Novartis announced that it would file a motion to subpoena the certiorari with the U.S. Supreme Court to appeal a panel reheard by the U.S. Court of Appeals for the Federal Circuit in June that reversed the panel’s earlier opinion upholding the validity of Novartis’ patent claims covering the multiple sclerosis treatment Gilenya.

FTC Orders Amazon’s Bezos, Jassy to Testify About Prime Consumer Deception – On Wednesday, September 21, Commissioner Christine Wilson of the Federal Trade Commission (FTC) issued an order denying in part Amazon’s omnibus request to limit demands for civil investigations (CIDs), ruling that Amazon failed to show that the CID’ is issued to the company’s CEO Andy Jassy and founder Jeff Bezos was unnecessarily burdensome. Under the CIDs, Jassy and Bezos will be required to testify in the FTC’s investigation into whether Amazon uses practices in its Prime retail subscription service that trick customers into signing up for the service.

The TTAB finds no clear and convincing evidence to support earlier priority date in the “Happiest Hour” proceeding – On Wednesday 21 September, the Trademark Trial and Appeal Board (TTAB) issued a preliminary ruling in JNF LLC v. Harwood International Inc. where the TTAB terminated a cancellation proceeding filed by JNF after finding that the firm could not establish an earlier priority date for its use of a “Happiest Hour” mark for bar and restaurant services by clear and convincing evidence, a higher burden of proof for, that JNF was faced with claiming a priority date that was earlier than the date stated in its original registration application.

Sixth Circuit Asks Eastern Michigan to Apply Safe Distance Rule in Jeep Trade Dress Case – On Monday, September 19, the US Court of Appeals for the Sixth Circuit issued a ruling in Mahindra & Mahindra Ltd. v. FCA US, LLC in which the appeals court vacated the Eastern District of Michigan’s decision that denied a permanent injunction against a redesigned version of an all-terrain vehicle previously found to infringe Jeep’s trade dress. The Sixth Circuit found that the district court’s decision lacked sufficient justification for failing to apply the safe-distance rule, which addresses persistent confusion from prior infringement of clothing by requiring known infringers to select clothing with characteristics distant from the infringed clothing.

Stephen Thaler Seeks CAFC Rehearing on Definition of “Individual” – On Monday, Sept. 19, computer scientist Stephen Thaler filed a petition with the Federal Circuit, asking that court to rehear its earlier ruling that declared that Thaler’s DABUS AI artificial intelligence system could not qualify as an inventor under US patent law . Thaler’s request challenges the Federal Circuit’s definition of “individual” under the statute.


C4IP brings together IP industry leaders to counter anti-IP narratives – On Thursday, September 22, the Council for Innovation Promotion (C4IP) was officially launched by founding members Andrei Iancu and David Kappos, both former directors of the US Patent and Trademark Office; Kathleen O’Malley, former circuit judge of the United States Court of Appeals for the Federal Circuit; and Paul Michel, former Chief Judge of the Federal Circuit. C4IP will promote the real world benefits of IP protection for consumers in an effort to correct anti-IP narratives that have been promoted in recent years.

The Copyright Office will host the final plenary meeting on technical protection measures on 4 October – On Thursday, September 22, the US Copyright Office announced that it would host the final plenary session on technical measures to identify or protect copyrighted works on October 4, the fourth session held by the Copyright Office following a request last June from Senators Patrick Leahy (D-VT) and Thom Tillis (R-NC).

Western Texas Jury Returns $175 Million Verdict Against Facebook Live, Instagram Live – On Wednesday, September 21, a jury in the Western District of Texas awarded $175 million in patent infringement damages to push-to-talk system innovator Voxer after finding that Meta Platforms infringed on Voxer’s asserted patent claims through its Facebook Live and Instagram Live services.

Judge Keeley rules that Mylan Generics infringes Merck Diabetes Treatment patent claims – On Wednesday, Sept. 21, Senior U.S. District Judge Irene M. Keeley of the Northern District of West Virginia entered a ruling that generic diabetes treatments marketed by Mylan Pharmaceuticals infringe patent claims owned by Merck covering its brand-name drugs Januvia and Janumet .

CFC Denies Motion to Amend Judgment Invalidating Section 101 Patents – On Wednesday, September 21, the US Court of Federal Claims (CFC) issued a ruling in Audio Evolution Diagnostics, Inc. against the United States in which the court denied Audio Evolution’s motion to amend or modify the judgment. The CFC found that the plaintiff’s arguments merely repeated arguments previously made by Audio Evolution in opposition to a motion to dismiss its complaint for failure to state a claim since the patent claims were directed to unpatentable abstract ideas under 35 USC § 101.

Chief Judge Cheney Denies Exclusive Relief Against OnAsset in Section 337 Proceeding – On Friday, September 16, Chief Administrative Law Judge Clark S. Cheney of the US International Trade Commission issued an initial ruling in a Section 337 case brought by mobile computing company Zebra Technologies, denying any exclusive relief that Zebra had requested against cargo tracking radio frequency transmission devices imported into the United States for sale by supply chain company OnAsset.

Crocs settles trademark case against Walmart in District of Colorado – On Friday, September 16, US retail giant Walmart was terminated as a defendant in a trademark lawsuit filed by footwear designer Crocs in the District of Colorado, after Crocs voluntarily dismissed its claims against Walmart following a reported settlement.

Virginia State Court Enters $2 Billion Trade Secret Ruling for Appian – On Thursday, September 15, Judge Richard Gardiner of Virginia’s Fairfax County Circuit Court issued final judgment on a jury verdict awarding $2 billion in damages to cloud computing company Appian, as well as 6 percent post-judgment interest on compensatory damages and attorneys’ fees, in its trade secret case against software competitor Pegasystems.

This week on Wall Street

Ford breaks ground on the construction of BlueOval City’s electric plant – On Friday, September 23, Detroit automaker Ford Motor Company announced that structural steel had gone up on the site of BlueOval City, a 3,600-acre campus outside Memphis, TN, where Ford is investing $5.6 billion to build a factory that produces electric vehicles and trucks.

Accenture reports a record 22% increase in revenue for FY2022 – On Thursday, September 22, global professional services firm Accenture reported earnings for the fourth quarter of 2022 and the full fiscal year, reporting a record 22 percent increase for the year to $61.6 billion, as well as a record $71.7 billion in bookings. in the financial year 2022.

Quarterly earnings – The following firms identified among the IPO’s top 300 patentees for 2021 are announcing quarterly earnings next week (2020 rankings in parentheses):

  • Monday: None
  • Tuesday: BlackBerry Ltd. (213.)
  • Wednesday: None
  • Thursday: Micron Technology Inc. (18th); Nike Inc. (111.)
  • Friday: None

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